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Public Interest Test

Many of the exemptions that exist in the laws are "qualified exemptions". These are subject to a "public interest test" which is designed to weigh up and compare the arguments in favour of giving out information against those arguments against.

Scottish FOISA guidelines

The public interest is not defined in FOISA but has been described as "something which is of serious concern and benefit to the public"

The "public" in this context does not necessarily mean the entire population. It might relate to a relatively localised public (e.g. a small community or interest group) or to the wider public at large.

The Section 60 Code of Practice gives advice to public authorities on applying the test

The Section 60 Code notes that the following factors should not be taken into account when applying the public interest test.

possible embarrassment of government or other public authority officials;

the seniority of persons involved in the subject matter;

the risk of the applicant misinterpreting the information.

possible loss of confidence in government or other public authority

The complexity of the information is not a valid reason for withholding information

EIR guidelines

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EIR Scotland guidelines

The public interest test is similar to that in section 2(1)(b) of the FOISA. Under the EIRs, a Scottish public authority may only refuse to make environmental information available if the public interest in making it available is outweighed by that in maintaining the relevant exception.

However, regulation 10(2)(b) builds in a presumption in favour of disclosure which means that where arguments are evenly balanced for withholding and disclosing the information, the information must be disclosed.

Freedom of Information Act 2000 - What the law says

(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—

(a) the provision confers absolute exemption, or

(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply.

(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—

(a) the information is exempt information by virtue of a provision conferring absolute exemption, or

(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.